The Supreme Court as a Racially Representative Institution

Below is an essay for our Race and the Supreme Court program by Harvard Law School professor Kenneth W. Mack.  Professor Mack writes extensively on the history and politics of civil rights law; his book Representing the Race: Creating the Civil Rights Lawyer, 1920-1955 will be published by Harvard University Press this year.

Although political scientists are fond of presenting it as a novel idea, the idea that the Supreme Court is a political institution has long been fairly obvious to African Americans and their constitutional advocates.  The proposition that the Court is an institution embedded in the larger politics of the world around it was self-evident to those who had noticed the curious convergence between the narrowing of their constitutional rights and the onset of the Jim Crow era.  Los Angeles civil rights lawyer Loren Miller stated a strong version of the thesis when he wrote, in the mid-1930s, that “I know that behind the scenes . . . public opinion exerts the determining role in law,” but he captured the general thrust of what had become conventional wisdom.  Sometimes even the Justices have to be reminded of it, as the exchange between President Obama and Justice Alito during this year’s State of the Union attests, but to those who have had perhaps the largest stakes in the question, its answer has been clear for quite some time.  The first two African Americans to sit on the Court, Justices Thurgood Marshall and Clarence Thomas, were keenly aware of this issue.  Each man approached it in a different way, as will, no doubt, the newest Justice, Sonia Sotomayor.

When Marshall joined the Court in 1967, the nature of that institution’s relationship to the politics of race changed irrevocably.  For all of its previous history, African Americans and their advocates had petitioned the Court, literally and figuratively, for redress of their grievances, so much so that Loren Miller gave his exhaustive history of black Americans and the Supreme Court, published one year before Marshall took his seat, a simple title: The Petitioners.  Marshall’s confirmation changed the nature of the Court from an institution that black Americans petitioned to one where they had political representation.  Indeed, politics of the most conventional sort lay behind that historic moment.  When President Kennedy elevated Marshall to the Second Circuit in 1961 and Johnson cleared the way for him to ascend to the Court six years later, both Presidents understood that black voters remained dissatisfied with the pace of executive action on civil rights.  Musing to Doris Kearns, Johnson confessed that Marshall’s nomination was one of his last chances to do something for African Americans who had made so much effort to “register and vote for the people who’d do a good job for them” but continued to be frustrated by barriers to equality.  Marshall evidently had reciprocal sentiments.  He called Johnson “my President,” while Nixon was “your President,” in speaking to his early clerks.

Throughout his tenure on the Court, Justice Marshall seems to have regarded himself as a political representative of those who had never participated in its deliberations.  In a 1973 case involving the permissibility of a $50 fee for a bankruptcy filing, for instance, Marshall invoked his unique experience, writing that “no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are.”  More significant was his draft opinion in Regents of the University of California v. Bakke, where he observed, acidly, that the Court had never had a black “Officer of the Court” and only had “three Negro law clerks.”  His biographer Mark Tushnet credits the draft, after it was reshaped a bit, with convincing Blackmun to join the Justices who voted to uphold some forms of affirmative action.  One of his last acts as a Justice was to ask a lawyer arguing a search and seizure case: “Was the defendant in this case by any chance a Negro?”, producing an embarrassed answer in the affirmative.  Within the Court’s deliberations, Marshall’s stories of his experiences as a black man who had grown up under Jim Crow were one of the things that his colleagues remembered most about him.  It was not self-evident that a black Justice should act this way.  Marshall’s mentor, for instance, William Hastie, the first black federal Circuit judge, adopted a pose of studious non-racialism of word and deed after he ascended the bench in 1949.  Marshall consciously chose to blaze a different path.

For Justice Clarence Thomas too, the politics of racial representation shaped both how he got to the Court and what he did once he arrived there.  Indeed, the only thing that would have produced more controversy than nominating a black conservative to fill Marshall’s seat would have been to have nominated a white lawyer of any political orientation.  The idea that there was now a “black seat” was now so embedded that it led President Bush and then-judge Thomas, both critics of race-conscious governmental decisionmaking, to go forward with a nomination that few could convincingly contend was anything other than that.  Conventional racial politics also played a role in his confirmation.  After charges surfaced that he had sexually harassed Anita Hill, a black subordinate, polling data showed that his support among black voters actually rose rather fell.  That support was one of the key factors that led a Democratic-controlled Senate to confirm him.

Once ensconced on the Court, Justice Thomas sat uncomfortably in the shadow of his predecessor.  “These people are mad because I’m in Thurgood Marshall’s seat,” he reportedly said of his critics.  At the same time, Thomas seems to share his predecessor’s view that a significant part of his role is to speak for those whom the politics of race have marginalized within the institution.  Although an ardent critic of race-based government practices, Thomas, for instance, took the time to write separately in a ruling on school desegregation early in his tenure.  Lauding state-sponsored historically black colleges as representing “the highest attainments of black culture,” he made clear his caution about a ruling that would endanger them.  In the context of pre-college education, too, Thomas has gone on record to distinguish himself from his conservative allies in emphasizing that black schools “can function as the symbol and center of black communities.”  More than any other Justice in the Court’s history, including Marshall, Thomas makes a point to cite black writers such as Frederick Douglass and W.E.B. Du Bois to ensure that their thoughts are made part of the record of the Court’s deliberations.  As scholars such as Randall Kennedy and Angela Onwuachi-Willig have argued, Justice Thomas undoubtedly views himself as a “race man” on the Court, to put it in terms that Marshall himself would have understood, whether or not one agrees with the uses to which Thomas has put that racial politics.

In nominating Sonia Sotomayor as the newest member of the Court, President Obama made clear that her experiences as the daughter of Puerto Rican migrants to New York were part of the reason for her selection.  In doing so, he merely followed in the tradition of the first President Bush, differing only in making explicit what everyone already knew.  As a court of appeals judge, Sotomayor famously went on record on the subject of minority group status and judicial voice.  Although she disavowed those specific observations, it seems clear that she will eventually find her unique role within the Court as a representative of those who had no place there before.  In doing so, she will be following the path that Justices Marshall and Thomas, each in differing ways, marked out before her.